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Can You Be Fired From a Job While on Leave With Disability?

The Family and Medical Leave Act is a federally mandated set of laws providing employees of most companies with 12 weeks annually of unpaid leave if they need to deal with serious medical or personal problems. This act only applies to businesses employing at least 50 people. However, entitled employees must have worked one year or more for their employer and have accumulated 1250 hours or more of work during the previous year. Although taking a leave of absence from work under this law is an unpaid absence, employees may be able to apply for and receive long-term disability or short-term disability benefits while on leave.

Fired From Job Due to Disability

Can an Employer Fire an Employee Who is on Leave with a Disability?

No. Employers cannot terminate an employee who is on FMLA leave. However, if that employee remains on leave beyond the 12 weeks allotted by the Family and Medical Act Leave, the employer may legally fire the employee. Also, employees returning to work from FMLA leave must be allowed to resume their former work tasks or given a position similar to the one they previously held. Employees receiving short-term disability or long-term disability benefits who are fired can continue receiving their benefits according to their policy terms.

How Does the ADA Protect People with Disabilities from Losing Their Job?

Further supporting rules set by the FLMA is the Americans with Disabilities Act, another federally mandated law that makes it illegal for employers to fire employees with disabilities. The ADA protects employes meeting their definition of a disability: “a mental or physical impairment substantially limiting major life activities”. Companies employing at least 15 workers are covered by the Americans with Disabilities Act.

Some employers think they have a legal right to fire employees who have been diagnosed with a disabling condition. However, they do not have that legal right and may be taken to court over such an unlawful termination of an employee. Contact our disability law firm today if you know of an employer who may have violated FMLA or ADA regulations.

Are You Eligible for Workers’ Compensation Benefits?

If you or a loved one was hurt in an accident at work, you could be eligible for workers’ compensation benefits to help cover your medical bills and lost wages. As long as you meet eligible, you may be entitled to benefits regardless of whether or not you were at fault for the accident. However, it is important to note that if you choose to seek this type of protection, you will typically have to forfeit the right to file a lawsuit against your employer to seek additional compensation.

Workers Compensation

What Are the Workers’ Compensation Eligibility Requirements You Must Meet?

Generally, applicants must meet 3 basic requirements to prove their eligibility for worker’s compensation benefits. These include:

· You must be an employee

· You must have a work-related illness or injury

· Your employer must currently carry worker’s compensation insurance coverage

To help determine where you may fall in terms of workers’ compensation eligibility, continue reading below.

Requirement #1: You Must Be an Employee

This may sound like an easy requirement to fill but in some cases, businesses hire independent contractors like freelance workers and consultants. However, many regularly employed workers like drivers for popular ride-sharing services have has disputes with their employers in the past. If you’re unsure which category you fit into, talking to a workers’ compensation attorney can help.

Requirement #2: You Must Have a Work-Related Injury/Illness

Typically, if you were completing a task or job at work and become injured or ill as a result, you should qualify for workers’ compensation benefits. But in cases where you were off the clock, say on a lunch break or driving to work in your privately owned vehicle, you may not qualify for benefits.

Requirement #3: Your Employer Must Have Worker’s Compensation Insurance

The majority of employers are required to carry this type of insurance coverage but in some cases, they may not be. If your employer is making it difficult to file for workers’ compensation benefits, it is in your best interest to speak with a workers’ compensation attorney as soon as possible.

What Happens When You Violate an NDA in a Personal Injury Case?

Reaching a settlement in a personal injury case often requires months of depositions, document requests, court appearances, interrogatories and negotiations. Your personal injury attorney has put in much time and effort to help you get the personal injury case settlement you deserve from the other side’s insurance company. However, in many cases, once the settlement paperwork arrives you find that a condition of the settlement requires that you agree to keep the details of the settlement under lock and key. But something even more startling is the fact that your settlement agreement outlines that in the event that you end up violating the non-disclosure agreement, you will be held responsible for penalties that could include repayment of part or all of the total settlement amount.

NDA Violation

What Are the Possible Penalties of an NDA Violation?

While the specific details of each personal injury case settlement can vary greatly, the common penalties contained in a non-disclosure agreement state that the violating party must either:

· Return the entire injury case settlement amount.

· Return a predetermined sum that is less than the full amount of the settlement. This is known as liquidated damages.

Additionally, most NDA agreements state that if the violating party fails to pay back the required sum upon demand, they will be financially responsible for covering the attorney fees and any additional costs that the insurance company may incur in the event that further legal proceedings are required.

How Can You Protect Yourself from a Non-Disclosure Agreement Violation?

It is clear to see that the penalties attached to an NDA violation can be very severe but there are some steps you can take to protect yourself from liability or at least soften the blow if you do breach the contract. Speaking with an experienced personal injury attorney is the first step in protecting your rights and preventing any future NDA violations.

Can a Tax Refund Affect SSI Eligibility?

If you are receiving supplemental security income from the Social Security Administration, your SSI is evaluated every month to determine if you are still eligible to receive SSI. Although receiving a state or federal tax refund usually doesn’t interfere with your SSI, the rules governing tax refunds and SSI are somewhat complicated.

Tax Refund and SSI

When Does a Tax Refund Affect Supplemental Security Income Payments?

Advanced tax credits and state and federal tax refunds do not need to be included in an SSI recipient’s resource limit. However, if the refund has not been spent within one year of receiving it and the SSI recipient goes over their allowable resources amount, they could lose part or all of their benefits. Additionally, refunds from child tax credits or earned income tax credits are exempt from mandated reporting for nine months after receiving the refunds.

Other types of income that the SSI program does not consider “true” income includes:

  • Assistance for food through the Supplemental Nutrition Assistance Program
  • Home energy assistance
  • Small amounts of money that are infrequently or irregularly received
  • Scholarships, grants or gifts meant to pay for educational expenses and tuition
  • Loans that require repayment
  • Earnings up to $7350 a year ($1820 a month) for students under 22 years of age

Tax Refunds and SSI Overpayments

The Social Security Administration considers an overpayment to be a monthly payment a recipient should not have been paid because they earned a certain amount of income for that month. If an SSI recipient does not spend a tax refund for one year and receives a regular SSI payment, the SSA may consider that payment an overpayment and expect it to be repaid. Other causes of overpayments include unreported changes in income due to marital or living status changes that exceed the SSI income limit, neglecting to report changes in a timely manner and mistakes made by the SSA.

To ensure you do not receive overpayments that must be repaid due to a tax refund, consult with a supplemental security income lawyer who is knowledgeable about complicated SSI guidelines.

Can You Get Disability Benefits if Your Child Has ADHD?

Child with ADHD

The Social Security Administration modified its listing of attention deficit hyperactivity disorder (ADHD) from a separate disorder to a neurodevelopmental disorder. This change encompasses a wider variety of medical conditions to facilitate receiving SSI disability benefits. In addition, the SSA has rewritten its description of ADHD symptoms that parents must prove through doctor reports and other documentation:

  • Impulsive, hyperactive behavior (inability to remain seated, talking excessively)
  • Difficulty focusing on and organizing tasks, extreme procrastination regarding completion of tasks
  • Recurring vocalizations or motor movements (rocking back and forth, repeating words and phrases, flapping arms)

Parents must also prove that a child’s ADHD/ADD imparts severe limitations in several functional areas. Some of these include interacting with people/peers, controlling behaviors, making reasonable decisions and remembering/learning information.

How Should a Parent Document Their Child’s ADHD?

To expedite SSI disability benefits for a child with attention deficit hyperactivity disorder, parents need to submit results of psychological tests, academic reports detailing an ADHD child’s behavior/learning issues in school and physical exams if they provide supportive information of the diagnosis. Each document must include full names, contact information and addresses if a doctor, therapist or other health professional has supplied the document to the parent. Clinical documents detailing how a child’s ADHD disability has worsened over time are also helpful.

Applying for ADHD Disability Benefits

Making an appointment at your local Social Security Administration Office is recommended if you are not using an SSI attorney to handle your case. Parents applying for a child’s ADHD disability should be aware that SSA considers household resources and income when making a decision about SSI disability benefits for children. In addition, the child’s ADHD must have been ongoing for 12 months or more or is expected to interfere with a child’s ability to function normally for at least one year.

Most disability claims are initially denied, but parents have the right to appeal their application. To reduce the chance of being denied, parents of an ADHD child should consider hiring an experienced SSI lawyer who knows how to satisfy particular SSA requirements. Contact our office today to schedule a consultation with an SSI disability benefits lawyer.

Getting Disability Benefits for Chronic Fatigue Syndrome

The Social Security Administration adheres to the diagnostic criteria established by the U.S. Centers for Disease Control regarding chronic fatigue syndrome (CFS). Anyone applying for social security disability benefits for chronic fatigue syndrome must prove they have suffered at least four of these six symptoms:

  • Recurring/persistent sore throat
  • Atypical/chronic headaches
  • Muscle/joint pain
  • Extreme deficits in concentration and memory
  • Tender/inflamed lymph nodes
  • Extreme fatigue/illness following physical activity that lasts at least 24 hours

Chronic Fatigue Syndrome

In addition, applicants will need to show they have been thoroughly examined and tested to rule out other causes of their symptoms upon submitting paperwork for their CFS disability case.

What Is the Application Process for Social Security Disability Benefits for CFS?

In addition to all doctors’ reports, test results and other clinically pertinent information, the SSA needs documentation of descriptions of functional limitations that applicants and their physicians have noted from the time an applicant first began having symptoms of chronic fatigue syndrome. Examples of functions the SSA deems as mental or work-related include the ability to walk, stand, lift, remembering and carrying out instructions and using appropriate judgment when making decisions.

Nearly 90 percent of successful CFS disability cases result with applicants being awarded monthly benefits according to SSA’s “medical-vocational allowance” guidelines. This allowance considers an applicant’s age, work history, education level and their residual functional capacity when determining if the applicant can work full time. RFCs are descriptions of an applicant’s maximum mental and physical abilities despite their other impairments.

What Is a Medically Determinable Impairment?

Social Security Ruling 14-1p states that while chronic fatigue syndrome can be disabling, it must be proven to be a medically determinable impairment (MDR) using laboratory findings or other medical tests. The SSA also accepts the following to establish an MDR:

  • Elevated antibodies in the bloodstream indicating Epstein-Barr virus
  • Abnormal brain scans
  • Results of psychological tests
  • Tests showing hypotension (neurally mediated)

Applicants seeking social security disability benefits for chronic fatigue syndrome will also need to provide enough third-party, subjective and clinical reports clearly outlining the extent and prolonged existence of CFS symptoms.

CFS is one of the more difficult disabilities to get approved by the SSA. Legal assistance can significantly improve the chance your CFS disability case is accepted. Contact an SSI lawyer today for help with your case.

Can You Get Disability Benefits for Sleep Apnea?

Sleep apnea affects more than 200,000 people in the United States per year. It is a serious sleeping disorder than affects your breathing while you are asleep. You can get disability benefits for sleep apnea, but check with your physician to get medically tested before you try applying for the disability assistance.

Disability Benefits for Sleep Apnea

What is Sleep Apnea?

Sleep Apnea is a sleeping disorder that interrupts a person’s breathing during sleep. Usually, they stop breathing multiple times during sleep, meaning the brain and the rest of the body is not getting enough oxygen. There are two types of sleep apnea:

  • Obstructive Sleep Apnea (OSA): This sleep apnea is generated by something blocking the airway, usually the soft tissue in the back of the throat. It is the more common of the two types of sleep apnea.
  • Central Sleep Apnea: This sleep apnea occurs when the brain fails to tell the muscles to breathe.

Adults age 40 and over typically have a higher chance of getting sleep apnea. Some symptoms of sleep apnea are disturbed sleep, excessive sleepiness during the day, high blood pressure, heart attacks, congestive heart failure, cardiac arrhythmia, strokes and depression.

A popular treatment for sleep apnea is a Continuous Positive Airway Pressure (CPAP) machine. Whether you have a mild or severe case of sleep apnea, you should go to your physician to get a medical diagnosis, which often includes a sleep test (where you will stay overnight at a sleep center) and to find out about other treatments.

Does Sleep Apnea Qualify for Disability Benefits?

According to the Social Security’s Office’s Listing of Impairments, sleep apnea is covered in section 3.10 titled “Sleep Related Breathing Disorders.” They are also covered in section 12.02, which deals with mental illnesses. You can quality for ss benefits if your pulmonary artery pressure is greater than 40 mm Hg. Go to your local physician and have your blood pressure checked. Blood pressure is often affected by sleep apnea. You can also qualify if you have chronic pulmonary disease. Again, your physician can test you for that. Section 12.02 also covers the emotional and psychological effects of sleep apnea, including memory loss, disorientation and changes in personality and mood. You can see the full catalog of impairments the Social Security Office covers on the official Social Security Administration website.

How Do I Qualify?

You have three options to see if you qualify for ss benefits:

  • Call the Social Security Office. Their phone number is 1-800-772 1213.
  • Apply online at https://www.ssa.gov/applyfordisability/.
  • Visit your local Social Security Office and physically fill out the paperwork. An appointment is required. You can visit https://secure.ssa.gov/ICON/main.jsp to find the nearest office.
  • Seek the help of an experienced disability attorney to guide you through the application so that you have the highest possibility of your application being accepted.

You will get a decision to see if you quality for ss benefits within three to five months. If they reject your application, you have a couple options. You can appeal the denial, which can be a lengthy process, but it will be worth it in the end. Do not try to re-apply because there is a good chance that you will be rejected again. You can also seek out legal help. Hiring a Social Security Disability attorney can help your case during both the application and the appeal process.

If you think you have sleep apnea, go to your physician immediately. Sleep apnea is covered by the Social Security Office and you can get benefits. If the application process seems overwhelming and you’re not sure how to prove your sleep apnea, contact us at Clauson Law Office today.

Can Back Problems Qualify for Disability Benefits?

Back injuries and problems can leave anyone unable to do their job. However, not everyone qualifies for Social Security Disability Insurance (SSDI) on their back problems alone. Back problems are the most cited disability the Social Security Administration will see cross their paths but not every back problem qualifies under the SSA’s definition of what it means to be disabled. Before applying, make sure to know if you qualify and everything you’ll need to prove your back problems qualify.

What type of back problems qualify for disability

How to Qualify

First, you need to make sure you qualify for SSDI to apply. The Social Security definition of disability states that you have to be unable to execute the work you did before, unable to adjust the kind of work you previously did because of your condition, and has lasted for or is expected to last at least a year or until your death. You also need to have built up a number of work credits over your working lifetime in order to be eligible for benefits. You can find the information for how many credits you need and have on the SSA website. Know what age you were when you became disabled to figure out your work credit. After that, you can begin gathering the information you need to apply.

What Back Problems Qualify?

Not all back problems will qualify for SSDI under the SSA’s definition of disability. Most of the disorders that qualify are spinal-related injuries. The SSA website lists herniated nucleus pulposus,, spinal stenosis, spinal arachnoiditis, degenerative disc disease, osteoarthritis, facet arthritis and vertebral fracture as examples of what qualifies. Chances are if you haven’t heard of these, you don’t have them.

With any back injuries, you still need to fit into the SSA guidelines of what it means to be disabled. Be aware that proving some of these like Nerve Root Compression might be harder than others. While these are some of the injuries listed as SSDI back disorders, there are also others that you can apply for. Things like spinal fusion, back surgery or paralysis also fall under the category of back injuries and problems you can apply with.

However, you still need to fall into the SSA definition of disability and have ample evidence of your issues. Documentation like X-rays, MRIs and doctor’s notes in your file will all help your claim for SSDI. It is important to remember that back issues are the most cited reason for people to apply for disability benefits, and the benefits are only granted to the most severe of cases. You must be able to prove that your back problems make your ability to function extremely limited, that you fall into their categories of spinal disorders and that your credibility can’t be called into question.

How to Apply

The SSA website offers a checklist when getting ready to apply. Having the most information possible on yourself, your work history, tax history from your accountant and medical information. The more documents, facts and information you come armed with about yourself and your medical history, the more likely you’ll get through the process quickly. Also have any banking information ready if you’d like to set up direct deposit. A disability attorney can successfully navigate you through the entire application process if this already seems overwhelming to you.

What Happens Now?

The wait time can be between three to five months for the application to be processed. If you are unable to work during that period of time then make sure that you figure out short-term income solutions for yourself while you wait for your application to be processed through the SSA. You will receive an email or letter in the mail with your approval or denial. If you are approved to receive SSDI, your first payment from the SSA will be for the sixth full month after the date that your disability benefits began. Payments are then sent the month afterwards so benefits for July would be paid in August. You can calculate how much you’ll receive on the SSA website.

Because the SSA gets so many back problem applications, be aware that a denial is highly possible. But it isn’t the end of the world. Your denial email or paperwork will come with information on how you can appeal the decision. Be sure to read everything thoroughly so you know exactly why they denied your claim (don’t qualify under their definition or is it because of a non-medical reason) so you can fight the decision to the best of your ability.

Applying for SSDI due to back issues won’t be easy but it’s possible. The SSA needs to be convinced that you cannot work with your back problems, and that burden falls on you. When applying, go in with as much information on your condition as possible. To find out exactly what you need to do to apply, visit us at Clauson Law Firm today.

If You Need Social Security Disability Income How Do You Know What they’ll Pay

Suffering from a disability is one of the most difficult things any person can endure. While the Social Security Administration (SSA) can help provide support, it’s not easy to know exactly what that benefit will be. If you need Social Security disability income, how do you know what the SSA will be paying?

How is the social security disability income amount determined

Determining What the SSA Pays for SSDI

If you’re eligible for Social Security Disability Income (SSDI), which means having paid into Social Security for long enough while employed, then here’s a brief breakdown of how payments are calculated. First, the SSA determines what your Average Indexed Monthly Earnings are, or would be over 35 years. This can be a bit confusing to calculate if you became disabled before actually completing 35 years of work.

The way it’s calculated for those that don’t have 35 years of work experience is as follows:

  • Take the age you were at the onset of the disability
  • Subtract 21 from that age
  • Subtract either 5 from that number of years, or 1/5th of that difference.
  • For example, if you were 36 when the disability set in, then you would subtract 21 from 36, giving you 15.
  • Then multiply 1/5th by 15, which is 3 years.
  • Since 3 years is less than 5, subtract the 3 from the 15 for a total of 12 years. The SSA will then only make the average monthly income based on the highest 12 years of earning you received.
  • If you were 46 or older at the onset of disability then you’ll be subtracting 5 from the difference between that age and 21.

Next is determining what your Primary Insurance Amount would be. This is the most complex aspect of the calculations. The SSA breaks down your average monthly earnings into three sections, then adds those three pieces together and that equals your monthly benefit payment. The three sections are broken down into brackets that are used for everyone.

  • $1 to $885 equals a benefit equal to 90%
  • $886 to $5,335 gets 32% as a benefit
  • $5,336 and above gets only 15%

For example, if you made $6,000 as the monthly average, then you’d receive $796.50 for the first $885, plus $1,424 for the amount between $886 and $5,335 of your average wages, then an additional $99.60 for the remainder. That would mean your total benefit should equal $2,320.10 per month.

Benefits for SSI

If you will receive Supplemental Security Income instead, then the calculation is more straightforward. SSI is based on your income, not your work history. The maximum payable amount is set by Congress, and half of any earnings you are likely to make over $65 per month, are deducted from that. If you need help making more sense of what you can receive for your Social Security disability income then contact a certified Social Security attorney to help determine what you could be paid.

Can I still be approved for Social Security Disability after being denied 3 times?

If someone is denied to receive Social Security disability benefits, it is highly recommended to appeal these denials. Some may continue filing separate claims each time, but that can hurt your case. The decision would not change if you file separate claims each time because it would continue to be sent to the same agency that denied your first claim instead of moving to another agency, which is likely that it will be denied for the same reasons. Though a reconsideration appeal — which is the first appeal — has approval rates of roughly 15 percent, that direction is more successful than reapplying every time.

Social Security Disability after being denied 3 times

Reconsideration appeals are also sent to be furthered review for a medical decision. This difference between this is that the disability agent takes the time to review the file and they make the decision. Generally speaking, unless a mistake was made by the initial examiner or there have been some new medical evidence, the appeal may still be denied for the same reasoning as before. Though, based on the actuality of the situation, the reconsideration appeal may not seem like a better option, it is a better option than filing another initial claim because it can be a step closer to appearing in front of an administrative judge.

If your claim gets denied three times, there are other options that you can take:

Give up on your claim: Of course, this option isn’t recommended, especially after all of the appeals you’ve already went through to get this far. Those who are persistent with this, at likely to win their claim once they keep trying. Your probability has increased just by the amount of attempts you have gone through and also having a representative in the presence as well. Your representative will have vital information to plead your case, such as medical records and statements from medical professionals.

File an appeal with the council: An appeal council is a group a judges who review your disability case and based on all information provided, make a decision.

Filing an appeal with the council and also a new disability claim: After being denied three times, at this point, you are able to take both actions. Generally, a decision on a new claim will be determined before the appeal council makes a decision. It makes the most sense to file a new claim during this process because by the time a case has gotten this far, there should be more medical evidence to support your claim to come up with a new decision.

If you are denied for Social Security disability benefits, especially multiple times, it is natural to want to give up. If you have a lawyer with you, they will make sure you don’t lose hope and continue fighting. A lawyer will want to maximize your success by taking chances on your claim and doing what they need to do so you can receive your benefits.